Academic highlight: Black and Owens on SG decision making

Posted Fri, September 21st, 2012 10:29 am by Amanda Frost

Although the Office of the Solicitor General (OSG) is more successful than the average litigant at both the cert. and merit stages, its win rate does not prove that its status influences the Court’s decision making. As Ryan Black and Ryan Owens point out in their new book, The Solicitor General and the United States Supreme Court: Executive Branch Influence and Judicial Decisions (Cambridge University Press 2012), the OSG’s repeated victories might be due to factors such as strategic case selection, ideological compatibility with the Justices, and greater resources and experience, rather than the OSG’s inherent ability to influence outcomes. Black and Owens seek to resolve the issue through empirical studies that compare the OSG’s performance with that of similar opponents.

For instance, Black and Owens examine whether the Court’s opinions are more likely to borrow language from OSG briefs than non-OSG briefs of similar quality, and how the OSG’s use of precedent affects the Court’s citations to, and discussions of, those cases. Most interesting to me was Chapter 5, in which the authors compare the probability of an OSG victory with that of equally matched opponents, controlling for attorney experience and resources, among other factors. Black and Owens conclude that “[s]imply being affiliated with the OSG . . . makes these attorneys more likely to win.”

Of course, the problem here is ensuring that the comparison is truly apples to apples. Black and Owens explain that they employ a “unique matching technique” to seek out “lawyers and cases that are as identical as possible in terms of experience before the Court, resources, ideological position vis-a-vis the Court, and the like.” By controlling for these factors, Black and Owens hope to isolate the effect of the OSG’s status on the Court’s decision making. (Spoiler alert: the authors ultimately conclude that the “OSG does not simply succeed before the U.S. Supreme Court, it actually influences the Supreme Court throughout its decision-making process.”)

Even for those who believe that empirical research cannot tell the whole story, the book provides an informative account of executive-judicial interactions through the use of advocacy at the Supreme Court. It should also make all those who have lost a case against the OSG feel a little bit better.

Merits Case Pages and Archives

The court issued additional orders from the December 2 conference on Monday. The court did not grant any new cases or call for the views of the solicitor general in any cases. On Tuesday, the court released its opinions in three cases. The court also heard oral arguments on Monday, Tuesday and Wednesday. The calendar for the December sitting is available on the court's website. On Friday the justices will meet for their December 9 conference; our list of "petitions to watch" for that conference is available here.

Major Cases

Gloucester County School Board v. G.G.(1) Whether courts should extend deference to an unpublished agency letter that, among other things, does not carry the force of law and was adopted in the context of the very dispute in which deference is sought; and (2) whether, with or without deference to the agency, the Department of Education's specific interpretation of Title IX and 34 C.F.R. § 106.33, which provides that a funding recipient providing sex-separated facilities must “generally treat transgender students consistent with their gender identity,” should be given effect.

Bank of America Corp. v. City of Miami(1) Whether, by limiting suit to “aggrieved person[s],” Congress required that a Fair Housing Act plaintiff plead more than just Article III injury-in-fact; and (2) whether proximate cause requires more than just the possibility that a defendant could have foreseen that the remote plaintiff might ultimately lose money through some theoretical chain of contingencies.

Moore v. Texas(1) Whether it violates the Eighth Amendment and this Court’s decisions in Hall v. Florida and Atkins v. Virginia to prohibit the use of current medical standards on intellectual disability, and require the use of outdated medical standards, in determining whether an individual may be executed.

Pena-Rodriguez v. ColoradoWhether a no-impeachment rule constitutionally may bar evidence of racial bias offered to prove a violation of the Sixth Amendment right to an impartial jury.

Conference of December 9, 2016

FTS USA, LLC v. Monroe (1) Whether the Fair Labor Standards Act and the Due Process Clause permit a collective action to be certified and tried to verdict based on testimony from a small subset of the putative plaintiffs, without either any statistical or other similarly reliable showing that the experiences of those who testified are typical and can reliably be extrapolated to the entire class, or a jury finding that the testifying witnesses are representative of the absent plaintiffs; and (2) whether the procedure for determining damages upheld by the Sixth Circuit, in which the district court unilaterally determined damages without any jury finding, violates the Seventh Amendment.

Overton v. United States Whether, consistent with this Court's Brady v. Maryland jurisprudence, a court may require a defendant to demonstrate that suppressed evidence “would have led the jury to doubt virtually everything” about the government's case in order to establish that the evidence is material.

Turner v. United States (1) Whether, under Brady v. Maryland, courts may consider information that arises after trial in determining the materiality of suppressed evidence; and (2) whether, in a case where no physical evidence inculpated petitioners, the prosecution's suppression of information that included the identification of a plausible alternative perpetrator violated petitioners' due process rights under Brady.